Edwards v. Towne Properties

Filing 3

REPORT AND RECOMMENDATION1 THAT PRO SE PLAINTIFFS 42 U.S.C. § 1983 CLAIMS BE DISMISSED WITH PREJUDICE ORDER THAT PRO SE PLAINTIFFS COMPLAINT REMAIN PENDING WITH REGARD TO OTHER CLAIMS AND THAT SERVICE OF PROCESS ISSUE re 2 Complaint filed by Drake A Edwards Objections to R&R due by 3/7/2016. Signed by Magistrate Judge Michael J. Newman on 2/17/2016. (ead)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DRAKE EDWARDS,
Plaintiff,

Case No. 3:16-cv-18

vs.
TOWNE PROPERTIES,

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendant.

REPORT AND RECOMMENDATION1 THAT PRO SE PLAINTIFF’S 42 U.S.C. § 1983
CLAIMS BE DISMISSED WITH PREJUDICE
***
ORDER THAT PRO SE PLAINTIFF’S COMPLAINT REMAIN PENDING WITH
REGARD TO OTHER CLAIMS AND THAT SERVICE OF PROCESS ISSUE

This civil case is before the Court for a sua sponte review -- pursuant to 28 U.S.C.
§ 1915(e)(2) -- of the complaint filed by pro se Plaintiff Drake Edwards (“Edwards”). Edwards
filed a motion for leave to proceed in forma pauperis (“IFP”) on January 13, 2016 (doc. 1),
which the Court granted. The Court, however, held service of the complaint pending a review
under § 1915(e)(2). It is appropriate for the Court to conduct this review sua sponte prior to
issuance of process “so as to spare prospective defendants the inconvenience and expense of
answering such complaints.” Neitzke v. Williams, 490 U.S. 319, 324 (1989).
I.
In accordance with 28 U.S.C. §1915(e)(2), this Court must perform an initial review of
the instant action. McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 1997). Upon
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Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.

review, the Court must dismiss any case it determines is “frivolous or malicious,” fails to state a
claim upon which relief can be granted, or seeks monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
A complaint should be dismissed as frivolous if it lacks an arguable basis in law or fact.
Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke, 490 U.S. at 325. A plaintiff sets forth no
arguable factual basis where the allegations asserted are “fantastic or delusional”; and presents
no arguable legal basis when advancing “indisputably meritless” legal theories, i.e., when the
defendant is immune from suit, or when the plaintiff claims a violation of a legal interest which
clearly does not exist. Neitzke, 490 U.S. at 327-28; Brown v. Bargery, 207 F.3d 863, 866 (6th
Cir. 2000).

Courts may also dismiss a complaint sua sponte for failure to state a claim upon

which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). While pro se pleadings are “to be
liberally construed” and are “held to less stringent standards than formal pleadings drafted by
lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), pro se plaintiffs must still
satisfy basic pleading requirements. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).
II.
The undersigned has carefully reviewed Edwards’s pro se complaint and liberally
construed the factual allegations contained therein. Edwards rents an apartment from Defendant
Towne Properties, Inc., who is attempting to evict him from the premises. See doc. 1-1 at
PageID 6. Edwards is disabled and an African American. Id. at PageID 5-7. The undersigned
liberally construes Edwards’s allegations to assert that Towne Properties seeks to evict him on
account of his race and disability. Id. He seeks damages as well as injunctive relief against
Towne Properties preventing his eviction. Id.

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In addition to the foregoing, Edwards alleges a number of defects in his rented property
and contends that Towne Properties has breached his lease, which the Court construes as a
breach of contract claim. Id.
III.
In his complaint, Edwards purports to assert claims under 42 U.S.C. § 1983. Doc. 1-1 at
PageID 5. However, “[t]o prevail on a § 1983 claim, a plaintiff must establish that a person
acting under color of state law deprived the plaintiff of a right secured by the Constitution or
laws of the United States.” Green v. Throckmorton, 681 F.3d 853, 859-60 (6th Cir. 2012) (citing
Waters v. City of Morristown, Tenn., 242 F.3d 353 (6th Cir. 2001)). Here, Towne Properties is
not a “state actor” and, therefore, no § 1983 claims exist against it. See Sayyah v. Herman, No.
1:15-CV-326, 2015 WL 7829121, at *4 (S.D. Ohio Dec. 4, 2015). Accordingly, Edwards’s
§ 1983 claims should be dismissed.
In addition to his § 1983 claims -- and again, liberally construing the factual allegations
in Edwards’s favor -- he also alleges that he is being evicted from his apartment, and that Towne
Properties has discriminated against him on the basis of race and disability. See doc. 1-1 at
PageID 6-7.

Allegations of discriminatory housing practices on the basis of race and/or

disability are actionable under federal law, including under the Fair Housing Act. See Elliott v.
Plaza Props, Inc., No. 2:08CV1037, 2010 WL 2541020, at *6 (S.D. Ohio June 18, 2010) (citing
Maki v. Laakko, 88 F.3d 361 (6th Cir. 1996)); see also Turner v. Am. Bldg. Condo. Corp., No.
1:12-CV-291, 2014 WL 4774003, at *5 (S.D. Ohio Sept. 24, 2014). These claims are also
actionable under Ohio law. See Ohio Rev. Code § 4112.02(H).
Accordingly, the undersigned finds potential, non-frivolous federal and state causes of
action asserted by Edwards in his complaint.
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IV.
For the foregoing reasons, the Court RECOMMENDS that Edward’s § 1983 claims be
DISMISSED, but that his complaint remain pending -- and that this case proceed -- with regard
to other federal and state claims asserted therein.
The United States Marshal is ORDERED to make service of process in this case under
Fed. R. Civ. P. 4(c)(3). All costs of service shall be advanced by the United States.

Date: February 17, 2016

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after being
served with this Report and Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to SEVENTEEN days because this Report and Recommendation is being served by
one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F), and may be
extended further by the Court on timely motion for an extension. Such objections shall specify
the portions of the Report and Recommendation objected to, and shall be accompanied by a
memorandum of law in support of the objections. If the Report and Recommendation is based in
whole or in part upon matters occurring of record at an oral hearing, the objecting party shall
promptly arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party’s objections within FOURTEEN days after being
served with a copy thereof.

As is made clear above, this period is likewise extended to

SEVENTEEN days if service of the objections is made pursuant to Fed. R. Civ. P. 5(b)(2)(C),
(D), (E), or (F). Failure to make objections in accordance with this procedure may forfeit rights
on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981).

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